Law News

Junk Science Debate Hits Family Court

Paternity suit defense challenges DNA testing

by Scott Brede
The Connecticut Law Tribune
March 29, 1999

Jay Black has Ann Landers to thank for his unusual, if not unprecedented, challenge of two DNA tests pegging him as the father in a hotly contested paternity action.

Black, a retired civil and electrical engineer and the defendant in Waskewicz v. Black, says he had known that Karendale Waskewicz, the woman accusing him of fathering her child in 1995, allegedly suffered from the human papilloma virus, or HPV.

That much he had unearthed through the plaintiff's hospital records, which she had provided to the defense as the result of its discovery efforts, Black says.

What Black didn't know before reading Landers' syndicated advice column in April 1998, he says, was that HPV is a sexually transmitted disease. He alleges that he had contracted it from Waskewicz during what Black, an Orange resident, claims was a brief sexual relationship with the woman.

Black, who contends their sexual relationship did not begin until after the child was conceived, next turned to the Internet. After learning more about HPV, he typed the words "human papilloma virus," "DNA" and "allele alterations" into an online search engine and came up with more than 5,000 "hits," he says. (An allele is either of a pair of genes located at the same position on both members of a pair of chromosomes, and plays a prominent role in DNA testing.)

As a result of his Internet research, Black says, he developed his challenge that HPV contamination skewed his DNA paternity tests.

Upon the birth of her child, Waskewicz identified Black as the father in hospital records, Black says. Just prior to the child's birth, Waskewicz filed a motion for a pre-judgment remedy to attach Black's property, according to Black. That motion, he says, was later withdrawn. Waskewicz then filed a paternity action against Black in February 1997 in Milford Superior Court.

Black, in return, brought a defamation suit in May 1998 in New Haven Superior Court against Waskewicz for naming him as the father in newspaper birth announcements that she placed.

A trial in the paternity case was scheduled to start last Friday, March 26, before Family Support Magistrate Alan E. Steele in New Britain Superior Court. It has been postponed to April 23.

Attorneys for both parties say it is the first time, to their knowledge, that DNA evidence has been contested on such a basis in a paternity suit in Connecticut, possibly the entire country.

It is also one of those rare occurrences where the debate over junk science, as Black's challenge is characterized by his ex-lover's lawyer, has spilled over into the state's family courts.

Long a touchy subject in other courtroom skirmishes, expert scientific testimony and its admissibility as evidence continues to be a major sticking point even after the U.S. Supreme Court's 1993 ruling, Daubert v. Merrell Dow Pharmaceuticals Inc.

Under Daubert, a court must determine whether such evidence is reliable, whether it's relevant, and whether its probative value outweighs the dangers of misleading, prejudicing or confusing the jury. Judges, under the standard, also are instructed to look beyond scientists' qualifications, and scrutinize the basis of their conclusions.

Previous to Daubert, courts followed the less flexible Frye v. U.S. , a 1923 decision by the U.S. Court of Appeals for the District of Columbia. Under Frye, scientific evidence was admissible only if it was "generally accepted" by the scientific community.

The Connecticut Supreme Court adopted the Daubert standard in its 1997 State v. Porter decision. Writing for the majority, Justice David M. Borden commented that the problem with the Frye test is that "scientific pioneers and dissenters are occasionally right."

In an interview last Wednesday, Gerald V. Davino II, the attorney representing the plaintiff in Waskewicz v. Black, the aforementioned paternity action, said he expected the defendant's expert witnesses would be allowed by Family Support Magistrate Steele to testify at trial.

The plaintiff, however, has her own team of scientists ready to rebut Black's contention that the HPV virus tainted the DNA paternity tests.

"It's a theory that our experts are going to absolutely refute," said Davino, of Shelton, Conn.'s Yudkin & Young.

HPV, according to the Centers for Disease Control and Prevention in Atlanta, is perhaps the fastest spreading sexually transmitted disease in the United States, with an estimated 5.5 million Americans becoming infected with the virus each year.

There are more than 80 distinct types of HPV, according to a 1998 CDC report. Some cause genital warts, but can be treated. Others, from which no treatment is currently available, can lead to cervical or other types of cancer, the report states.

In a Nov. 24, 1998, letter that forms the core of Black's defense, Gordon G. Carmichael, professor of microbiology at the University of Connecticut Health Center in Farmington, asserts that HPV can also have an effect on its host's DNA.

"Human papilloma viruses . . . must utilize machinery within the host cell nucleus in order to grow and produce progeny," writes Carmichael, who is expected to testify for the defense. "As part of this process, these viruses must interfere with cellular machinery that normally protects the cell from damage to the DNA chromosome and the appearance of mutations.

"If the cell survives the virus infection," Carmichael continues in the letter, "then it is likely to sustain genetic damage, and the alteration of regions of its chromosomes. . . . Owing to these considerations, and my extensive background in virology and molecular genetics, my opinion is that genetic testing of DNA samples prepared from human papilloma virus-infected cells are quite likely to be unreliable," he concludes.

Last Tuesday, as the case neared trial, New Haven solo Max F. Brunswick, and Black, his client, sat around a conference table in Brunswick's office that was cluttered with scientific reports. Brunswick said a victory for his client could have far reaching consequences in other paternity disputes because of the prevalence of the human papilloma virus.

Brunswick admitted that expert witnesses may seem to be coming out of the woodwork these days. But Carmichael is someone who is immensely qualified in his field, he claimed.

"The DNA test," Black insisted, "is where the junk science is."

An unprepossessing man in his mid-sixties, Black appeared anxious for the trial to begin. With him, he said, were the 124 articles he garnered from the Internet to back up his claim.

Later last Tuesday, in a telephone interview, Assistant Attorney General Wilbur Ward Dinegar, who is in the AG's child-support division and is representing the three-year-old child's interests in the case, said it's not Carmichael's credentials that will be the main line of the plaintiff's questioning at trial.

"I'm not impugning Dr. Carmichael at all," Dinegar noted. "But his theory has never been advanced . . . to empirical knowledge."

That Black was subject to two paternity-confirming DNA tests--the second one performed by a laboratory of his choosing--is a burden, according to Davino, the plaintiff's lawyer, "that this defendant isn't going to be able to overcome."

Dinegar said both tests surpassed the 99 percent accuracy threshold, as required by state law (Connecticut General Statutes ы46b-160 allows for genetic testing in paternity disputes). The second test actually exceeded the threshold by a larger measure than the first, he maintained.

Carll Ladd, supervisor of the state Forensic Science Laboratory's DNA unit, doesn't buy the defense's claims.

"Pick your favorite cancer, it will cause mutations," says Ladd, who is not involved in the case. "But mutations that can coincidentally change [one DNA profile] into someone else's profile? . . . It's completely ludicrous," Ladd asserts.

A "false positive" reading as the result of a randomly acting virus?

"This strikes me as being in the realm of Tinker Bell," Ladd contends.

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